Yesterday, I wrote a post on Eric Posner’s reply to Ross Douthat on President Obama’s refusal to enforce immigration laws against large numbers of unauthorized immigrants. I realize now that I waded into this subject too hastily, as the issues at stake need to be teased out more carefully.
Posner’s argument, essentially, is that the executive branch has broad prosecutorial discretion to enforce, or to not enforce, federal laws as it sees fit. Since the federal government has long had a semi-official policy of allowing unauthorized immigrants to remain in the United States if they do not commit serious crimes, Posner maintains that President Obama’s proposal would do little more than officially recognize this current practice. This strikes me as incorrect. Yet it is incorrect in a more interesting manner than I had originally suggested.
To make his case, Posner compares the president’s decision to not enforce immigration laws for a given class of people to the fact that the IRS doesn’t audit poor people, and that the DEA goes after criminal syndicates but not ordinary drug users. Federal agencies face resource constraints that make setting priorities when it comes to law enforcement a necessity. This setting of priorities falls under the rubric of prosecutorial discretion.
But the executive action that is being contemplated by the Obama administration is not primarily about husbanding enforcement resources to achieve the broader goal of enforcing existing U.S. immigration laws. There are two separate components to it. The first is deferred action, which is within the prosecutorial discretion of immigration officers. On this front, Posner has a case, albeit a weaker one than he seems to think. The second component involved granting a broad class of unauthorized immigrants work authorization. This second step is in many respects more significant than the first, and the question of whether or not to grant work authorization to those who have settled in the country unlawfully is, I would argue, at the heart of the immigration reform debate. This power to grant work authorization does not derive from an inherent authority of the executive branch. Rather, the power to grant work authorization was granted to the executive branch under the Immigration Reform and Control Act of 1986. It seems very unlikely that Congress intended to grant the president the authority to allow millions of unauthorized immigrants the right to full participation in the U.S. labor market, and some lawmakers have tried to address this question, but the statute says what the statute says. So while there is much to say about Posner’s idiosyncratic reading of American constitutional history, his analysis sheds little light on the most pressing policy questions raised by the president’s (reported) new proposal.
Prosecutorial discretion applies to many different decisions made by those charged with immigration enforcement, as a recent CRS report helpfully explains: which immigration violations to investigate most vigorously; deciding whether or not to question or detain a particular individual; agreeing to let an unauthorized immigrant to leave the country voluntarily; granting a deferred action; and actually deporting an immigrant. Deferred action has generally been granted on an individualized, case-by-case basis, yet the immigration authorities have granted blanket relief from deportation to all immigrants from, say, a particular country that has experienced some humanitarian disaster.
The deferred action the Obama administration announced in its June 15, 2012 DHS memorandum is quite different from those that came before it. DACA (Deferred Action for Childhood Arrivals) applies to over one million people, as a class, not in response to natural disaster or civil strife or some temporary disruption. Rather, it represents, in the words of Zachary Price, “a categorical, prospective suspension of both the statutes requiring removal of unlawful immigrants and the statutory penalties for employers who hire immigrants without proper work authorization.” (Like the executive action that is currently being contemplated by the White House, DACA had both a prosecutorial discretion component and a work authorization component.) And as Josh Blackman of the South Texas College of Law observes in a forthcoming article, DACA achieved the statutory objectives of the DREAM Act despite the fact that Congress expressly declined to enact it. This is why a number of critics insist that the president has stretched the limits of prosecutorial discretion. CRS strongly suggests that the courts are unlikely to rein in the executive branch:
By refusing to fully enforce certain aspects of a statutory provision, such an action may exceed the permissible scope of prosecutorial discretion and violate the President’s duty that the “laws be faithfully executed.” However, CRS was unable to find a single case in which a court invalidated a policy of non-enforcement founded upon prosecutorial discretion on the grounds that the policy violated the Take Care clause. Moreover, it is unclear whether the June 15 memorandum would constitute an absolute non-enforcement policy so as to amount to an “abdication” of a statutory obligation, as discussed previously. Though establishing a department-wide policy regarding a group of individuals who meet certain criteria, the directive suggests that the listed criteria should be “considered” in each individual case. Thus, the directive could be interpreted as setting forth criteria for consideration in each individual exercise of prosecutorial discretion, rather than implementing a ban on deportation actions for qualified individuals.
If President Obama can stretch prosecutorial discretion to this extent, why has he taken so long to extend the logic of DACA to encompass a broader constituency of unauthorized immigrants, including millions of others who are the relatives of U.S. citizens or who have lived in the United States for five years or more? It seems that the president had in the past been limited by a sense of political prudence. When Congress has debated immigration legislation in the past, there has been a sense that the executive branch shouldn’t preempt these debates or effectively overrule them by creating facts on the ground by, say, granting work authorization to contested categories of immigrants.
Now, however, the president seems to have decided that congressional intransigence gives him the political license to act unilaterally. Blackman elaborates on this theme:
As a justification for DACA, the President stressed that “In the absence of any immigration action from Congress to fix our broken immigration system . . . we’re improving” the immigration policy on our own. This policy does not fit neatly into the “We Can’t Wait” rubric, as Congress considered it, and defeated it. Congress failing to vote on a law is a decision on policy in and of itself. Yet, the President cited this impatience, and frustration with the legislative process as the basis for an expansion of his inherent prosecutorial discretion to not enforce the laws against an entire class of people.
The trouble is that under our system of government, prosecutorial discretion is meant to be a tool to allow the executive branch to achieve statutory objectives, not as a tool for changing policy:
In the case of the recess appointments to the NLRB, DACA, and the myriad revisions of the Affordable Care Act, Congress has opposed each of the actions taken. The President has not argued that any of these limitations imposed by Congress were unconstitutional, or violated the separation of powers. Rather, inherent authority has been relied upon to justify policies where there is a disagreement or impasse with Congress.
The Office of Legal Counsel has taken the position that while it may be valid for the President to decline to enforce the laws due to his view that they are “unconstitutional,” it would not be permissible to do so because he “opposes [them] for policy reasons.” Apropos, John Yoo charged the President with “the unprecedented stretching of the Constitution and the rule of law.” For, President Obama “is laying claim to presidential power that goes even beyond that claimed by the Bush administration, in which I served. There is a world of difference in refusing to enforce laws that violate the Constitution (Bush) and refusing to enforce laws because of disagreements over policy (Obama).” Further, without the benefit of a raging war, bolstered by the Commander in Chief Clause, the President’s inherent authority over domestic matters becomes quite weak.
The American constitutional order doesn’t rest solely on statutes, or on judicial efforts to restrain the executive branch. It also rests on norms. And the president’s apparent willingness to violate these norms is setting a dangerous precedent.
Update: Eric Posner has replied to this post. Posner makes a number of claims about my post that are inaccurate. For example, he writes that “Salam argues that the president can’t do what Congress didn’t intend.” In fact, I argue almost exactly the opposite. I explicitly note that the executive branch has broad authority to grant work authorizations under federal law, and that whether or not Congress intended to grant the president such sweeping powers, “the statute says what the statute says.”
Josh Blackman has done an able job of addressing Posner’s arguments, and so I don’t see a need to respond to Posner in detail. As I thought was fairly clear from my post, but evidently not clear enough for Posner, my objection to the new deferred action initiatives is that they represent a violation of important norms about which decisions belong in the legislative realm and which belong to the executive branch.
I will, however, address one of Posner’s claims:
The Chicago police do not announce in advance that it will suspend the law requiring people to obtain a license to shoot off fireworks. That the police are issuing “fireworks permits” hither and yon, akin to Obama’s work permits. But everyone knows that this is the policy. No one has explained why announcement of prospective action–which serves important rule-of-law values by informing the public of policy–is a defect rather than an improvement over the Bush era, where virtually no employer was ever punished for employing illegal immigrants but a policy of non-enforcement was never announced.
Question: How many employers were punished by the Bush administration in 2006 for employing illegal immigrants? Answer: zero. It’s true that he didn’t announce a policy of granting work permits to illegal aliens. But that was his policy. Why didn’t Salam argue then that Bush was violating the Constitution?
Note that I don’t argue that Obama is violating the Constitution, so that’s one rather straightforward reason. As for why a prospective action might be a defect rather than an improvement over the Bush era, I can think of at least one obvious reason: a prospective action of this kind informs the expectations of unauthorized immigrants, and the expectations of those who enter into economic and other social arrangements with them. Though such an announcement does not technically “legalize” unauthorized immigrants, it encourages them to deepen their ties to the United States. This in turn makes the future revocation of their contingent protected status far more difficult. Prospective action can thus be understood as “entrenching.”